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Alcohol abuse at work

12 June 2015: Alcohol & Work:

What do you do if your employee turns up at work smelling of alcohol?


That was the issue in the Tribunal case of McElroy v Cambridgeshire Community Services NHS Trust reported this week, in which Mr McElroy’s won his unfair dismissal claim.


Mr McElroy, a healthcare assistant, turned up at work smelling of alcohol. His line manager spoke to him and Mr McElroy said he’d had a couple of pints the night before, and suggested she could smell his aftershave.


Mr McElroy was suspended under the Trust’s disciplinary policy which stated that gross misconduct included being unfit for duty through the effect of drink. The Trust’s substance misuse policy merely recommended that employees avoid drinking before coming to work. There were no complaints about his actual work or conduct. Occupational Health found he was fit to work.


Mr McElroy was dismissed not only for coming in unfit to work, but for failing to attend a further meeting with Occupational Health. The Trust concluded that he had attended work under the influence of alcohol and had put himself, colleagues and patients at risk, and referred to the inconsistent explanations he had provided.


The Employment Tribunal however concluded the dismissal was unfair.  A reasonable employer would not have treated attending for work smelling of alcohol as gross misconduct or conduct justifying dismissal in the absence of either evidence of an adverse effect on the employee’s ability to do his job, or in the absence of a previous warning given under the employer’s disciplinary policy not to do so.


Mr McElroy had not been told that failing to attend a second OH appointment was being considered as a disciplinary issue before the disciplinary hearing. A reasonable employer would not have taken account of a charge that had not been put to the employee when deciding to dismiss.


The case highlights the potential difficulties an employer can face when dealing with alcohol abuse at work. Having an up to date disciplinary and substance misuse policy is a good start, as a contractual term requiring employees to undergo medical examinations (or breathalysers) as necessary. In slightly different circumstances the dismissal might have been fair.


Call us today to speak to one our employment solicitors for advice on unfair dismissal and disciplinary procedures, or alcohol at work. See our other posts on our website.


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